# Makrand Singh & Ors v. State of U.P

- **Citation:** (2022) 1 ILRA 544
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-07
- **Case number:** Criminal Appeal No. 4255 of 2006
- **Bench:** Manoj Kumar Gupta, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/makrand-singh-ors-v-state-of-u-p-48044
- **Pages:** 19

## Headnote

Criminal Law - Indian Evidence Act, 1872 -
Section 3- Section 8- It is a case of direct
evidence. In case of direct evidence the
motive becomes insignificant.

Settled law that where there is direct evidence /
ocular evidence of the occurrence, motive loses
its significance.

Criminal Law - Indian Evidence Act, 1872-
Section 3- Both witnesses were present on
the
spot.
There
is
no
evidence
to
disbelieve the evidence of PW-1 & PW-4
eye
witnesses.
Their
evidence
are
supported by medical evidence. There is
no other injury on the body of the
deceased except firearm injuries. Thus
ocular evidence is supported by medical
evidence. PW-1 & PW-4 are fully reliable
and credible witnesses. They have no
enmity with the accused and there is no
ground to implicate them falsely. The
submission of defence that witnesses are
related one is not tenable.

Where the testimony of the eye witnesses is
credible and trustworthy and were naturally
present on the spot, then the same cannot be
disbelieved only on the ground that they were
related witnesses.

Criminal Law - Indian Penal Code, 1860-
Section 34- Common Intention- Injuries
were inflicted by the accused on vital part
of the deceased in furtherance of common
intention
of
all
the
accused.
After
committing
the
gruesome
incident,
accused fled away from the scene of
occurrence. In furtherance of common
intention they hide themselves in the crop
of ''Jwar' with firearm and committed
joint attack on the deceased and fled
1 All. Makrand Singh & Ors. Vs. State of U.P.
545
away from the scene of occurrence. It
proves the common intention of the
accused.
In
furtherance
of
common
intention accused inflicted firearm injuries
on the deceased jointly which is the cause
of death of Suresh. The act of accused
persons were done in furtherance of
common intention to kill the deceased
Suresh. It is very difficult to note the
mental status of a person. Common
intention should be gathered by the act
and conduct of the accused persons.

Where all the accused persons have acted in
concert and in furtherance of common
intention in the commission of the offence,
then
the
same
makes
each
of
them
vicariously liable u/s 34 IPC.

Arms Act, 1959- Section 25/27 - I.O. of
the crime under Section 25 Arms Act is
junior to the I.O. of the main case. In
such
situation
fair investigation of
Section 25 Arms Act is not possible by
junior officer of the same police station.

Where the investigating officer of the case
under the Arms Act is junior to the
Investigating Officer of the main case and is
of the same police station, then no fair
investigation is possible.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 100 (4) -
Independent witness has also not been
produced
regarding
search
and
recovery. The provision under Section
100(4) Cr.P.C. is not complied with in
this
case
by
the
recovery
officer.
Conviction on the basis of statements
of two police officials alone is not
sustainable.

Non compliance of the provisions of Section 100
(4) of the CrPc by the prosecution renders the
alleged recovery of the fire arms vitiated and
conviction on the basis of such recovery, which
was effected without obtaining any independent
witnesses, is unsustainable in law. ( Para 31,
50, 51, 60, 63, 64)

Accordingly
Criminal
Appeal
under
Arms Act allowed while Appeal u/s
302/34 IPC rejected. (E-3)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,951 of 63,164. This is a partial read: ask again with offset=39951 for what follows._

544 INDIAN LAW REPORTS ALLAHABAD SERIES

46. On the basis of above discussion,
we are of the view that judgment and order
of the trial Court dated 22.05.2010 passed
by Additional Sessions Judge, Court No.2,
Bulandshahr in Sessions Trial No. 1637 of
1999, arising out of Case Crime No. 222 of
1999, Police Station Sikarpur, District
Bulandshahr, convicting and sentencing the
appellants Shanker and Kaluwa to undergo
rigorous life imprisonment under Section
302/34 IPC with fine of Rs.5,000/- each
and in default to undergo, one year
additional simple imprisonment by each, is
liable to be confirmed and is hereby
confirmed.

47. It is evident that accused Shashi
died during trial and case against him was
abated. Accused Munesh participated in the
trial after framing the charge, but accused
Munesh absconded and his file was
separated from the present case as Sessions
Trial No. 1637-A of 1999.

48. During trial, the accused appellant
Shankar and Kaluwa remained in judicial
custody. Accused are directed to serve out
the remaining period of their sentence.

49. The appeals are devoid of merits
and liable to be dismissed. The appeals are,
accordingly, dismissed.
----------
(2022)01ILR A544
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.01.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 4255 of 2006

Makrand Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Deshraj Garg, Sri Rajiv Lochan Shukla,
A/D 0 103,Sri Arya Suman Pandey

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Evidence Act, 1872 -
Section 3- Section 8- It is a case of direct
evidence. In case of direct evidence the
motive becomes insignificant.

Settled law that where there is direct evidence /
ocular evidence of the occurrence, motive loses
its significance.

Criminal Law - Indian Evidence Act, 1872-
Section 3- Both witnesses were present on
the
spot.
There
is
no
evidence
to
disbelieve the evidence of PW-1 & PW-4
eye
witnesses.
Their
evidence
are
supported by medical evidence. There is
no other injury on the body of the
deceased except firearm injuries. Thus
ocular evidence is supported by medical
evidence. PW-1 & PW-4 are fully reliable
and credible witnesses. They have no
enmity with the accused and there is no
ground to implicate them falsely. The
submission of defence that witnesses are
related one is not tenable.

Where the testimony of the eye witnesses is
credible and trustworthy and were naturally
present on the spot, then the same cannot be
disbelieved only on the ground that they were
related witnesses.

Criminal Law - Indian Penal Code, 1860-
Section 34- Common Intention- Injuries
were inflicted by the accused on vital part
of the deceased in furtherance of common
intention
of
all
the
accused.
After
committing
the
gruesome
incident,
accused fled away from the scene of
occurrence. In furtherance of common
intention they hide themselves in the crop
of ''Jwar' with firearm and committed
joint attack on the deceased and fled
1 All. Makrand Singh & Ors. Vs. State of U.P.
545
away from the scene of occurrence. It
proves the common intention of the
accused.
In
furtherance
of
common
intention accused inflicted firearm injuries
on the deceased jointly which is the cause
of death of Suresh. The act of accused
persons were done in furtherance of
common intention to kill the deceased
Suresh. It is very difficult to note the
mental status of a person. Common
intention should be gathered by the act
and conduct of the accused persons.

Where all the accused persons have acted in
concert and in furtherance of common
intention in the commission of the offence,
then
the
same
makes
each
of
them
vicariously liable u/s 34 IPC.

Arms Act, 1959- Section 25/27 - I.O. of
the crime under Section 25 Arms Act is
junior to the I.O. of the main case. In
such
situation
fair investigation of
Section 25 Arms Act is not possible by
junior officer of the same police station.

Where the investigating officer of the case
under the Arms Act is junior to the
Investigating Officer of the main case and is
of the same police station, then no fair
investigation is possible.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 100 (4) -
Independent witness has also not been
produced
regarding
search
and
recovery. The provision under Section
100(4) Cr.P.C. is not complied with in
this
case
by
the
recovery
officer.
Conviction on the basis of statements
of two police officials alone is not
sustainable.

Non compliance of the provisions of Section 100
(4) of the CrPc by the prosecution renders the
alleged recovery of the fire arms vitiated and
conviction on the basis of such recovery, which
was effected without obtaining any independent
witnesses, is unsustainable in law. ( Para 31,
50, 51, 60, 63, 64)

Accordingly
Criminal
Appeal
under
Arms Act allowed while Appeal u/s
302/34 IPC rejected. (E-3)

Judgements/ Case law relied upon:-

1. Pratap Singh & ors vs. St. of U.P. 2021, SCC
Online All 686

2. Abu Thaker Vs. St. of T.N, (2010) 5 SCC 91

3. Bipin Kumar Mondal Vs. St. of W.B, (2010) 12
SCC 91

4. Mohd. Rojali Ali & ors. Vs. St. of Assam
(2019) 19 SCC 567

5. Laltu Ghosh Vs. St. of W.B (2019) 15 SCC
344

(Delivered by Hon'ble Om Prakash
Tripathi, J.)

1. Heard Shri Rajiv Lochan Shukla,
learned counsel for the appellants and Shri
A.N. Mulla, learned A.G.A. for the State
and perused the material on record.

2. The appellants have preferred this
criminal appeal aggrieved by judgment and
order
dated
27.07.2006
passed
by
Additional Sessions Judge/ Fast Track
Court IInd Court No. 7, Banda, in Session
Trial No. 86/2004 arising out of Case
Crime No. 198 of 2003 (under Section
302/34 I.P.C.), Session Trial No. 87 of
2004 arising out of Case Crime No. 210 of
2003 (under Section 25/27 Arms Act),
Session Trial No. 88 of 2004 arising out of
Case Crime No. 202 of 2003 (under
Section 25 Arms Act), Session Trial No. 89
of 2004 arising out of Case Crime No. 203
of 2003 (under Section 25 Arms Act),
Session Trial No. 90 of 2004 arising out of
Case Crime No. 204 of 2003, (under
Section 30 Arms Act) Police Station -
546 INDIAN LAW REPORTS ALLAHABAD SERIES
Baberu, District- Banda convicting and
sentencing the appellants to undergo
imprisonment for life under Section 302/34
I.P.C. with a fine of Rs. 5000/- each and in
default of payment of fine to undergo six
months additional rigorous imprisonment,
convicting and sentencing the appellant
nos. 1, 2 & 4 under Section 25 of Arms Act
to
undergo
two
years
rigorous
imprisonment and fine of Rs. 1000/- each
and in default of payment of fine to
undergo two months additional rigorous
imprisonment
and
appellant
no.
3
Ramchandra under Section 30 of Arms Act
to undergo three months imprisonment. All
the sentences shall run concurrently.

3. The prosecution case is as follows:

4. Virendra Singh, the complainant
lodged the first information report on
06.10.2003 at Police Station- Baberu,
District- Banda alleging therein that on
06.10.2003 at 6:00 p.m. his son Suresh
Singh, Sughar Singh S/o Chandan Singh
R/o Vibhar Thok, Kasba Baberu and Other
relatives were coming to their village. On
the way (near to ''Puliya') accused Makrand
Singh
S/o
Shiv
Kumar,
Ramjeet,
Ramkaptan, Rishikesh S/o Chandrabali
came with arms in their hands. Everyone
fired with their own weapons, which hit
Suresh, after being shot, Suresh fell in a
pool of blood and died in agony. Then the
accused fled away from the scene of
occurrence.

5. On the basis of the written report
(Exhibit Ka-1), the police registered Case
Crime No. 198 of 2003, under Section
302 I.P.C. Investigation of the case was
taken over by Inspector Jai Shankar
Pandey (PW-10). He rushed to the spot
and recorded the statements of the
witnesses under Section 161 Cr.P.C. and
prepared a map of the
site. The
postmortem of the dead body has been
done after ''Panchayatnama'.

6. During investigation, recovery
has been made from the possession of
accused persons. On 09.10.2003 at 11:00
a.m. S.H.O. Jai Shankar Pandey (PW-10)
along with his police personnel caught
two person namely Ramjeet Singh and
Rishikesh Singh both S/o Chandrabali
Singh.
One
factory
made
Rifle
AB01/4150 (315 bore) with three live
cartridges have been recovered from the
possession
of
Ramjeet
Singh.
One
country
made
pistol
and
two
live
cartridges (315 bore) have been recovered
from the possession of accused Rishikesh
Singh. On the pointing of Ramjeet and
Rishikesh Singh, one licensee rifle (315
bore) has been recovered from the
possession of Ramchandra Singh.

7. On 22.10.2003, one S.B.B.L. Gun
(12 bore), two live cartridges have been
recovered from the possession of accused
Makrand Singh.

8. On the basis of aforesaid
recovery, Sections 25 & 25/27 of Arms
Act have been made upon accused
Ramjeet Singh, Rishikesh Singh and
Makrand Singh respectively.

9. The postmortem examination of the
dead body of the deceased Suresh Singh
was conducted by Dr. S.P. Gupta (PW-5)
on 07.10.2003. As per the post mortem
report, the deceased was about 38 years
old. On internal examination of the
deceased, the doctor opined that the
deceased died due to haemorrhage and
shock as a result of Ante-Mortem Firearm
Injury.
Ante-mortem
injuries
are
as
follows:-
1 All. Makrand Singh & Ors. Vs. State of U.P.
547

(i) The firearm wound of entry of
3cm x 3cm, bone deep on right side of neck.
05Cm away from lower part of right ear.
Margin inverted. Blackening present.

(ii) The firearm wound of exit of
5cm x 3 cm, bone deep on left side of neck
including 1cm of lobule of left ear.
Connected to injury no. 1. Margin everted.

(iii) The firearm wound of entry
2cm x 2 cm, bone deep on left side of neck,
5cm away from injury no. 2. Margin
inverted. Blackening present.

(iv) The firearm wound of exit of
4cm x 4cm bone deep right side of head just
behind
right
ear.
Margin
inverted
connected to injury no. 3. On section right
temporal, right parietal and occipital bone
fractured.

(v) The entry wound of fire arm
size 2cm x 2cm, muscle deep on upper part
of back of chest in right scapular region.
Margin inverted. Blackening present.

(vi) Fire arm wound of entry 3cm
x 3cm bone deep right shoulder, 01 cm
away from end of right clavicle. Margin
everted and connected to injury no. 5. On
section right collar bone fractured.

(vii) Fire arm wound of entry 3cm
x 3cm bone deep on left side of chest 13 cm
away from left axilla & 12cm away from
left nipple. Margin inverted. Direction from
left to right. Rib fractured on section 6th
and 7th .

10.

After
collecting
evidence,
Investigating Officer submitted charge
sheet under Section 302 I.P.C. against all
accused and accused Makrand Singh under
Section 25/27 Arms Act, Ramjeet Singh
under Section 25 Arms Act, Rishikesh
under Section 25 Arms Act, Ramchandra
under Section 30 Arms Act.

11. Thereafter committal proceeding
took place and the case of four accused
Makrand Singh, Ramjeet Singh, Ram
Kaptan and Rishikesh were committed to
court of session where they were registered
as Sessions Trial Nos. 86/2004, 87/2004,
88/2004, 89/2004, 90/2004. After that all
these connected sessions trials were made
over to the court of Sessions Judge, Banda
for trial and disposal of the cases. On
25.03.2004, the trial court was prima facie
satisfied with the case against the accused
therefore charges under Sections 302/34
I.P.C. were framed against all the accused
namely Markand, Ramjeet Singh, Ram
Kaptan and Shrikesh. Charge under Section
25 of Arms Act were framed against
accused Makrand Singh, Ramjeet Singh,
Shrikesh Singh and charge under Section
30 of Arms Act was framed against Ram
Chandra Singh. The charges were read over
and explained to the accused who pleaded
not guilty and claimed to be tried.

12. In order to prove the guilt of the
accused and substantiate charges against
them the prosecution examined Virendra
Singh
(complainant)
(PW-1),
Head
Constable Harprasad (PW-2), Jatrem (PW3), Sughar Singh (PW-4), Dr. S.P. Gupta
(PW-5), Rakesh Singh (PW-6), SubInspector Rajdeo Singh (PW-7), Sub
Inspector R. S. Gaur, (PW-8), Constable
S.V. Dwivedi (PW-9), Inspector Jaishankar
Pandey (PW-10).

13. Prosecution has relied on the
documentary evidences as (i) Written
Report Ex. Ka-1, (ii) F.I.R. Kayami G.D.
548 INDIAN LAW REPORTS ALLAHABAD SERIES
Ex. Ka-2, (iii) Kayami G.D. Ex. Ka-3, (iv)
F.I.R. Ex. Ka-4, (v) Kayami G.D. Ex. Ka-5,
(vi) Postmortem Report Ex. Ka-6, (vii)
Inquest Report Ex. Ka-7, (viii) Letter R.I.
Ex. Ka-8, (ix) Letter of C.M.O. Ex. Ka-9,
(x) Challan Lash Ex. Ka-10, (xi) Photo
Lash Ex. Ka-11, (xii) Sample Seal Ex. Ka12, (xiii) Blood stained & Plain Earth Ex.
Ka-13,(xiv) Recovery memo of Blood
Stained ''Angochha' & ''Chappal' Ex. Ka14, (xv) Recovery memo of Blood Stained
''Angochha' & ''Chappal' Ex. Ka-15, (xvi)
Recovery memo of Empty Cartridge Ex.
Ka-16, (xvii) Recovery memo of one pair
black colour ''Chappal' Ex. Ka-17, (xviii)
Recovery
memo of
one pair
white
''Chappal' Ex. Ka-18, (xix) Recovery memo
of Rifle, Tamancha & Cartridge & Arrest
of Accused Ex. Ka-19, (xx) Recovery
memo of search of house of victim Ex. Ka20, (xxi) Spot Map Ex. Ka-21, (xxii)
Recovery memo of SBBL Gun, Cartridge
& Arrest of Accused Ex. Ka-22, (xxiii)
F.I.R. Ex. Ka-23, (xxiv) Kayami G.D. Ex.
Ka-24, (xxv) Spot Map Ex. Ka-25, (xxvi)
Charge Sheet Ex.a-26, (xxvii) Sanction
Order of D.M. Ex. Ka-27, (xxviii) Charge
Sheet Ex. Ka-28, (xxix) Sanction Order of
D.M. Ex. Ka-29, (xxx) Charge Sheet Ex.
Ka-30, (xxxi) Sanction Order of D.M. Ex.
Ka-31, (xxxii) Charge Sheet Ex. Ka-32,
(xxxiii) Spot Map Ex. Ka-33, (xxxiv) Spot
Map Ex. Ka-34, (xxxv) Charge Sheet Ex.
Ka-35, (xxxvi) Spot Map Ex. Ka-36,
(xxxvii)
Report
of
Vidhi
Vigyan
Prayogshala Ex. Ka-37, Ka-38, Ka-39.

14. After completion of evidence of
the prosecution all incriminating facts and
materials were put to the appellants under
Section 313 Cr.P.C. They denied the fact
and materials and stated that they have
been falsely implicated. Virendra Singh
(complainant) was forcibly ploughing the
land of his brothers Vijay Bahadur Singh,
Ghanshyam Singh and Surendra Singh, in
which we had duly taken legal possession
by buying land of Vijay Bahadur Singh and
Surendra Singh long before the murder.
Due
to
which
Virender
Singh
(complainant) started to feel very jealous.
For this reason they have been falsely
implicated. We are innocent. The witnesses
have given evidence falsely due to enmity.
False recovery of incriminating materials
have been shown but no witness has been
examined in defence.

15.

PW-1
Virendra
Singh
(Complainant) (eye witness of incident)
had deposed on oath that the murder of my
son Suresh Singh took place prior to one
year and 20 days from today. Prior to the
murder of Suresh Singh, murder of
Chandrabali Singh took place three years
ago. Accused began to make suspicion on
my son Suresh Singh. Deceased Suresh
Singh, I, Satyendra Singh, Sughar Singh
S/o Chandan Singh, Jatrem Singh R/o
Bamraula, P.S.-Marka were coming to their
village at 6:00 p.m. When Suresh deceased
came near ''Puliya', Makrand Singh S/o
Shiv
Kumar
Singh,
Ramjeet
Singh
S/oChandrabali Singh, Ram Kaptan Singh
S/o Chandrabali and Rishikesh Singh S/o
Chandrabali Singh appeared with weapons.
Ramjeet has taken rifle of his brother
Ramchandra, rest accused were armed with
firearm. Seeing my son, accused Ramjeet
exhorted that enemy found today, so kill
him; then all the accused fired together on
the body of Suresh Singh. The incident
took place on 06.10.2003 at 6:00 p.m. My
Son Suresh Singh got injured by the shot of
the accused, he fell down and died on the
spot. Accused fled away after hitting my
son. Written report was written by Jagdish
Singh on my dictation who met me in
Baberu. After writing the report Jagdish
read-over to me, then I put my signature on
1 All. Makrand Singh & Ors. Vs. State of U.P.
549
the report. I, Daljeet and Rakesh went to
police station at about 8:30 or 8:45 p.m. in
the night. Witness has identified his
signature on the written report which has
been exhibited as Exh. Ka-1. I do not
remember that inquest report was prepared
on the same day or next day. I also put my
signature on the inquest report. Postmortem
took place on the next date. Relevant
evidence in cross examination will be
discussed later on.

16.

PW-2
Head
Constable
Harprasad, P.S.-Atarra, District-Banda,
formal witness had proved the Chik
F.I.R. as exhibit Ka-2 and Kayami G.D.
Ka-3. It is also stated by the witness that
on 06.10.2003 when he was Head
Moharir at P.S.-Baberu at 9:45 p.m.
Virendra Singh S/o Cheda Singh, his son
Rakesh and Daljeet Singh came with
written report and on the basis of written
report,
I
lodged
Case
Crime
No.
198/2003 under
Section
302
I.P.C.
Witness has also proved Chik F.I.R.
129/2003, Crime No. 202, 203 of 2003
under Section 25 Arms Act and Crime
No. 204/03 under Section 30 Arms Act.
On the basis of recovery memo prepared
by S.I. Jai Shankar Pandey the witness
proved the said Chik F.I.R. as exhibit Ka4 and Kayami G.D. Exh. Ka-5. In the
cross examination the witnesses stated
that it is wrong to say that entire
preparation of record was made by me as
ante-dated and ante-timed, after lodging
the report Kotwal forthwith proceeded
towards
the
place
of
occurrence.
Complainant also went with S.H.O. in his
jeep.
The
complainant
and
his
companions came to the police station by
the vehicle. In the F.I.R. date 08.10.2003
has been shown under the signature of
Circle Officer and dated 13.10.2003 is
endorsed under the signature of first
A.C.J.M.

17.

PW-3
Jatrem
stated
in
examination-in-chief that Virendra Singh is
the father of the deceased Suresh Singh.
Virender Singh is not alive. The incident
took place about prior to 11⁄2 years. Cheda
Singh was the son of Virendra Singh. I was
not on the spot and have not seen the
murder of Suresh Singh. It is wrong to say
that I have seen the incident that on
06.10.2003 at 6:00 p.m. near Puliya
Ramjeet, Makrand, Rishikesh and Ram
Kaptan had murdered my brother-in-law
Suresh Singh by rifle and the witness was
declared hostile by the prosecution and
denied the statement made under Section
161 Cr.P.C.

18. PW-4 Sughar Singh (eye witness
of the incident) had deposed on oath that
deceased Suresh Singh was son of my
brother-in-law
Virendra
Singh.
The
incident took place on 06.10.2003 at
6:00/6:15 p.m., I went at the house of
Virendra Singh on the date of incident.
Cheda Singh father of Virendra Singh, was
going to "Gaya" so I reached at his house
on 06.10.2003 about 6:00 p.m. I, Suresh
Singh, Virendra Singh, Jatrem were coming
back to Parsauli. We three were walking
together and deceased Suresh Singh was in
front of us when deceased Suresh Singh
reached near ''Puliya' there was crop of
''Jwar' in the adjoining field and there was
''Babool' on the road. Four people came out
from bush of ''Babool' namely Makarand
Singh, Ramjeet, Ram Kaptan and Rishikesh
Singh. Seeing Suresh Singh, Ramjeet
shouted that enemy found today, so kill
him, then all the accused fired together on
the body of Suresh Singh. Suresh Singh
injured by the shot of the accused fell down
550 INDIAN LAW REPORTS ALLAHABAD SERIES
and died on the spot. Accused fled away
after hitting Suresh Singh. Seeing this
incident, we shouted loudly. When we
shouted, the accused again fired towards us
twice. While running away, two pairs of
slippers of the accused were left on the
spot. Jatrem is the brother-in-law of the
deceased.

19. PW-5 Dr. S.P. Gupta stated that
on 07.10.2003 I was working on the post of
surgeon in District Hospital Banda. My
duty was in postmortem that day. The dead
body of Suresh Singh S/o Virendra Singh
Thakur R/o Parsauli, P.S.- Baberu, District-
Banda,
was
brought
before
me
by
Constable Saieuddin, P.S.- Baberu in a
bundle of clothes with a seal. The age of
deceased was about 38 years and the
probable time after death was a day. The
body structure of the deceased was normal.
Eyes and mouth were closed. After death,
the rigor mortis has passed away from the
neck while it was present in the upper and
lower limbs. Injuries on the body of the
deceased has been mentioned previously.

20. Relevant portion of evidence in
cross examination shall be mentioned
during the discussion.

21. PW-6 Rakesh Singh S/o Virendra
Singh has stated that the incident took place
on 06.10.2003. Chandravali Singh was
murdered three years ago. On the said date,
my brother Suresh Singh was coming to his
village from Purwahar at around 6:00 p.m.
with my relative Jatrem, Sughar Singh. On
the way near ''Puliya' my villager Makrand
Singh, Ramjeet, Ram Kaptan and Rishikesh
were carrying firearm in their hands.
Ramjeet
has
taken
rifle
of
brother
Ramchandra and seeing my brother Suresh
Singh, Ramjeet shouted that enemy found
today, so kill him; then all the accused fired
together on the body of Suresh Singh. My
brother Suresh Singh, injured by the shot of
the accused, fell down and died on the spot.
Accused fled away after hitting my brother.
Relevant portion of cross examined shall be
discussed later on.

22. PW-7 witness Rajdeo Singh S.I.,
is formal witness. He prepared and proved
Panchayatnama Ex.Ka-7, letter R.I. Ex. Ka8, letter C.M.O. Ex. Ka-9, Challan Lash
Ex. Ka-10, Photo Lash Ex. Ka-11 and
sample seal Ex. Ka-12. The witness has
also collected plain earth and blood stained
earth from the spot proved as Ex. Ka-13,
recovery memo of Angochha and Chappal
has been prepared and proved as Ex. Ka14, recovery memo of one cartridge 12
bore prepared on the spot on 07.10.2003
proved by the witness as Ex. Ka-15,
recovery memo of three empty cartridges
315 bore prepared and proved as Ex. Ka-16
from the spot witness as prepared recovery
memo of Chappal black colour and proved
as Ex.Ka-17. Recovery memo of one pair
white chappal plastic prepared and proved
as Ex. Ka-18. Recovery memo of the
search of the house of victim by S.H.O.
Vijai Shankar Pandey was prepared and
proved by the witness as Ex. Ka- 19 & 20.
This was the witness of recovery of
(Alakatal) and proved the recovery memo
of the Alakatal as Ex. Ka-19. The witness
also proved one pair white plastic chappal
material Ex. Ka-1, one pair black colour
chappal material Ex. Ka-2. The witness
also proved one factory made Rifle 315
bore and 3 live cartridges as material Ex,
Ka-3 to 6.

23. PW-8 S.I. R.S. Gaur was witness
of recovery and had accompanied on
09.10.2003 at 8:45 a.m. Accused Ramjeet
Singh was arrested with factory made rifle
315 bore AB01-4150 and 3 live cartridges
1 All. Makrand Singh & Ors. Vs. State of U.P.
551
315 bore. Other accused Rishikesh was also
arrested on the same day later on bearing
with one Tamancha 315 bore having in the
left side of his pant and two live cartridges
315 bore. Ramjeet stated that recovered
rifle and cartridges belong to my brother
Ramchandra who is retired military man.
Recovery memo was prepared on the spot
and proved by the witness as Ex. Ka-19.
The site plan of recovery place has been
prepared by Inspector Jai Shankar Pandey
whose writing and signature is acquainted
by the witness and he had proved the said
map as Ex. Ka-21 and on the basis of said
recovery Crime No. 202, 203, 204 of 2003
under Section 25 & 30 of Arms Act has
been registered.

24. On 22.10.2003 witness was in the
company of Inspector Jai Shankar Pandey
and
Constable
Wahiuddin,
Constable
Dharmendr Singh and Driver Shiv Ram
Singh.

25. On 23.10.2003 at 1:45 a.m.
arrested Makrand Singh with one SBBL
Gun and in the left pocket two live
cartridges. The accused had also confessed
that he used this gun in commission of the
murder of Suresh Singh. Recovery memo
of arrest and recovered articles were proved
as Exh. Ka-22. F.I.R. of the said case has
been also proved as Exh. Ka-23 and G.D.
as Exh. Ka-24. Spot map as Exh. Ka-25,
Charge sheet as Exh. Ka-26.

26. Prosecution sanction Exh. Ka-27,
Charge sheet of Session Trial No. 88 of 04
proved as Exh. Ka-28, prosecution sanction
as Exh. Ka-29, charge sheet Exh. Ka-30.
Prosecution sanction Exh. Ka-31, charge
sheet of Session Trial No. 90/04 proved as
Exh. Ka-32, spot map relating to Session
Trial No. 86/04 as Exh. Ka- 33, recovery
memo of gun and spot map proved as
Exh. Ka- 34 & 35.

27. Constable S.V. Dwivedi PW-9
deposed on oath and he has proved spot
map of the recovery of Crime No.
207/2003 as Exh. Ka-36.

28. PW-10 Inspector J.S. Pandey
Investigating
Officer
of
Crime
No.
198/2003 under Section 302 I.P.C. has
collected evidence. Recovery memos were
already proved as Exh. Ka- 13 to 18.
Recovery
memo
of
country
made
Tamancha was prepared on 09.10.2003 and
exhibited as Exh. Ka-19, Spot map as Exh.
Ka- 21. On 23.10.2003 Makrand Singh was
arrested with SBBL Gun 12 Bore with two
live cartridges. Recovery memo was
proved as Exh. Ka- 22, Spot map of the
recovery was also proved as Exh. Ka- 34,
Evidence of witnesses Jagat Prem and Shiv
Nagar were recorded. The recovered
articles were
sent to Vidhi Vigyan
Prayogshala, Agra for examination and on
the basis of evidence collected charge sheet
was submitted to the court which was
proved by the witnesses exhibited as Exh.
Ka-35.

29. So far as the F.I.R. is concerned
learned counsel for appellants submitted
that F.I.R. was lodged ante dated & ante
time and was lodged after due consultation.

30. Complainant PW-1 father of the
deceased had deposed that this F.IR. was
written by Jagdish Singh on my dictation in
Kasba Baberu, Jagdish had read over the
written ''Tehrir' to him and I endorsed my
signature on it. Written report was
exhibited Exh. Ka- 1. Written report was
prepared on my dictation addressed to
Kotwal Sahab, Baberu. I do not know the
552 INDIAN LAW REPORTS ALLAHABAD SERIES
second designation of the Kotwal Sahab.
On this point it is submitted that in the
written report ''Prabhari Nirikshak' has been
mentioned. This contradiction will come in
the category of minor contradictions.
Statement of the witness was recorded after
one year from the date of incident. In the
statement witness stated that when I
endorsed on the written report, there were
other member of the public and police
personnel were present. In police station it
is quite natural that members of the public
and police personnel are always present. It
is immaterial that where the signature was
endorsed on the written report. PW-2 Head
Constable Har Prasad has given in his
statement that on 06.10.2003 no other
cognizable case has been registered in
Police Station- Baberu. On the basis of
written report this witness prepared F.I.R.
and proved as Exh. Ka-2 and this witness
also proved Kayami G.D. as Exh. Ka-3.
The statement of the witness that except
this no other cognizable case has been
registered in P.S.- Baberu on the said date,
does not denote itself that F.I.R. has been
lodged ante dated or ante time. Incident
took place on 06.10.2003 at 6:00 p.m.
report was lodged on the same day at 20:45
p.m. Distance of the police station is about
16 Kms. from the place of occurrence. PW6 Rakesh Singh also stated in this statement
that when he and his father went to lodge
report to the police station, Kotwal Sahab
was there and they discussed with him
regarding F.I.R. After discussion with
Kotwal Sahab my father dictated the
written report to Jagdish and taking the
Tehrir, Kotwal proceeded from Kotwali
after taking him and his father in the Jeep.
It is quite natural that after the incident
complainant and their family members
become fearful and after consolation they
proceeded for lodging F.I.R. at the police
station. The contention of learned counsel
that complainant reached the police station
very late i.e. at 8:30 or 8:45 p.m. has no
force in the present case. Deceased was 38
years old and after the murder of younger
son, father complainant consoled himself
and lodged F.I.R. within 2:45 hrs. It shows
that F.I.R. was lodged promptly without
seeking legal advice. Natural facts were
stated in the F.I.R., complainant was also
eye witness of the case and it is evident
from the written report that name of the
assailants, type of the arms bearing and
used by each and every accused has been
categorically stated in the ''Tehrir'. There
was no exaggeration. The submission of
learned counsel that F.I.R. is ante time and
ante dated has no force.

31. Learned counsel for appellants
submitted that there was no motive to cause
the incident. In the F.I.R. motive has been
stated in brief that prior to this incident
murder of Chandrabali Singh father of the
accused took place and accused created
suspicion about my son Suresh Singh with
regard to his involvement in regard to the
murder of Chandrabali Singh. 193 (Kha)
certified copy of the F.I.R. by which it is
apparent that on 26.12.2000 at about 6:00
p.m. some unknown person had committed
the murder of my father Chandrabali Singh
S/o Rambaksh when he was sitting before
bonfire (Alava). Ramjeet Singh has lodged
this F.I.R. and also stated that he and his
brother Ramkaptan and Rishikesh Singh
were irrigating their field. 194 (Kha) shows
that in the said case final report has been
submitted by the police. In the statement
under Section 313 Cr.P.C. accused had
stated that complainant had cultivated the
land of his brother Vijay Bahadur Singh,
Ghanshyam and Surendra Singh by force
which has been purchased by the accused
from Ran Vijay Bahadur Singh and
Surendra Singh much prior from the date of
1 All. Makrand Singh & Ors. Vs. State of U.P.
553
incident due to this complainant was
enemical with the accused and falsely
implicated. Photostat copy of ''Bainama'
has been filed as Paper No. 188(Kha) to
192 (Kha). The papers are not admissible in
evidence due to photostat copy but from the
said papers it is evident that on 02.01.1992,
22.10.1998, 16.09.1997, 17.09.1997 &
27.02.2002 sale deeds were executed in
favour of the accused persons except
Makrand
Singh
by
Indrajeet
Singh,
Surendra Singh and Ranvijay Singh.
Brothers of complainant had not filed any
complaint before the competent authority
that his brother Virendra Singh had forcibly
cultivated their lands. Complainant had
also not filed any civil suit for any relief
before civil court. No criminal complaint
has been filed by the complainant against
the accused. It shows that complainant had
no grievance due to execution of sale deed
by brothers in favour of the accused and the
submission of the accused that due to these
sale deeds complainant became enemical
and falsely implicated them in this case has
no force. Complainant had lodged F.I.R.
against the persons who had actually
caused the murder of his son, Makrand
Singh S/o Shiv Kumar. He had no sale deed
in his favour, from the brothers of
complainant.
Ramjeet,
Rishikesh,
Ramchandra, Ramkaptan had taken sale
deeds from the brothers of the complainant.
He had also opportunity to falsely implicate
Ramchandra whose rifle was used in
committing the crime by his brother
Ramjeet but the name of Ramchandra had
not been shown in the name of assailants.
With regard to motive trial court also
arrived at the conclusion that accused
persons had suspicion on Suresh Singh for
the murder of Chandrabali and in this
connection
CID
Officers
has
called
complainant at Allahabad and stated that
you and your son are going to be
implicated in the murder of Chandrabali
Singh. From the evidence on record it is
proved by the cogent reliable evidence of
the eye witness that incident took place at
6:00 p.m. There was ample light on the
spot to recognize the accused by witnesses.
It is a case of direct evidence. In case of
direct
evidence
the
motive
becomes
insignificant. It is coincident that death of
Chandrabali took place at 6:00 p.m. Death
of Suresh also took place at 6:00 p.m. In
support of his contention learned A.G.A.
has placed reliance on following rulings:-

32. In Pratap Singh and others vs.
State of UP 2021, SCC Online All 686, the
Court held that :

"motive is not very relevant in a
case
of
direct
evidence,
where
it
dependable ocular version is available.
Once, there is evidence forthcoming on the
basis of an eye witness account that is
consistently narrated by multiple witnesses
motive is hardly relevant. "

33. In Abu Thaker Vs. State of Tamil
Nadu, (2010) 5 SCC 91, the Court held that
:

"It is settled legal proposition
that even if the absence of motive and if
allowed is accepted that is of no
consequence and pales into insignificance
when direct evidence establishes the crime,
therefore,
in
case,
there
is
direct,
trustworthy evidence of witnesses as to
commission of an offence, the motive part
uses its significance. Therefore, if the
genesis of motive of occurrence is not
proved, the ocular testimony of the
witnesses as to the occurrence could not be
discarded only by reason of absence of
554 INDIAN LAW REPORTS ALLAHABAD SERIES
motive, if otherwise the evidence is worthy
of reliance."

34. In Bipin Kumar Mondal Vs. State
of West Bengal, (2010) 12 SCC 91, the
Court held that :

"motive is of no consequence and
pales into insignificance when direct
evidence establishes the crime. Motive is a
thing which is primarily known to the
accused himself and it may not be possible
for the prosecution to explain it. Ocular
testimony of the witnesses if reliable cannot
be discarded only by the reason of the
absence of motive."

35. From the evidence of the PW-1
Virendra Singh, PW-4 Sughar Singh, it is
evident that they were present at the time of
occurrence. Murder of Suresh Singh has
been committed by the accused before
them. They have witnessed the occurrence.
Thus in the presence of direct and reliable
evidence motive losses its importance. In
the cross examination of PW-6 he stated
that it is wrong to say that for wife of
Suresh, Ashok and his companions had
committed murder of Suresh Singh at any
time in the night. It has also been stated in
the statement that the wife of Suresh Singh
had fled away from the house. I do not
know that Ashok had married her. Suresh
had two sons, they are left at my house. I
do not know that how many sons begotten
by her from Ashok. This defence has also
not been stated during the statement under
Section 313 Cr.P.C. So this defence will
not help the accused. It is also proved that
complainant has no reason to implicate the
accused falsely in this case. He would have
opportunity
to
falsely
implicate
Ramchandra in the list of assailant but he
had
not
mentioned
the
name
of
Ramchandra whose licensee rifle has been
used in the crime. Only actual facts has
been stated in F.I.R. Motive to commit this
crime is proved. Thus the submission of
learned counsel that they have been falsely
implicated in the case and had no motive to
kill deceased is not tenable.

36.

The
postmortem
report
examination was conducted on the body of
the deceased Suresh aged 38 years by Dr.
S.P.
Gupta,
Motilal
Nehru
Zila
Chikitsalaya, District Hospital, Allahabad
on 07.10.2003. Ante mortem injuries were
as follows:-

i) The firearm wound of entry of
3cm x 3cm, bone deep on right side of neck.
05Cm away from lower part of right ear.
Margin inverted. Blackening present.

(ii) The firearm wound of exit of
5cm x 3 cm, bone deep on left side of neck
including 1cm of lobule of left ear.
Connected to injury no. 1. Margin everted.

(iii) The firearm wound of entry
2cm x 2 cm, bone deep on left side of neck,
5cm away from injury no. 2. Margin
inverted. Blackening present.

(iv) The firearm wound of exit of
4cm x 4cm bone deep right side of head just
behind
right
ear.
Margin
inverted
connected to injury no. 3. On section right
temporal, right parietal and occibital bone
present.

(v) The entry wound of fire arm
size 2cm x 2cm, muscle deep on upper part
of back of chest in right scapular region.
Margin inverted. Blackening present.

(vi) Fire arm wound of entry 3cm
x 3cm bone deep right shoulder, 01 cm
away from end of right clavicle. Margin
1 All. Makrand Singh & Ors. Vs. State of U.P.
555
everted and connected to injury no. 5. On
seclon right collar bone fractured.

(vii) Fire arm wound of entry 3cm
x 3cm bone deep on left side of chest 13 cm
away from left axilla & 12cm away from
left nipple. Margin inverted. Direction from
left to right. Rib fractured on section 6th
and 7th .

37. The cause of death was excess
bleeding and shock due to antemortem
firearm injuries. It is wrong to say that
there is no possibility of death of the
deceased on 06.10.2003 at 6:00 p.m. There
was no mud on the clothes of the dead body
of the deceased. On the basis of blackening
it can be said that firearm injury has been
inflicted from a distance of three feet.

38. From the perusal of report from
Vidhi Vigyan Prayogshala exhibit Ka-37 it
has been mentioned that both blood stained
soil and plain soil are same in their physical
merits. It has been mentioned in exhibit
Ka-38 there is report that on blood stained
soil and plain soil, Angochha, Chappal,
Kurta,
Baniyan,
Underwear,
Kalawa,
Chaddi, blood stains were found on major
parts.
On
kurta,
Tahmad,
Baniyan,
Underwear blood stains were found in large
area.
On
Kurta,
Tahmad,
Baniyan,
Underwear, Kalawa human blood was
found. It has been mentioned in exhibit Ka39 that there is sign of firing pin on the
cartridges recovered and examined. There
is comparative lack of sign of firing pin on
the cartridges recovered with SBBL Gun.
There is also lack of merits on the
recovered
cartridges
TC-4,
TC-5.
Recovered cartridges EC-2 and EC-3 have
been fired by rifle and cartridges EC-4 has
been fired by country made pistol. Thus, on
the said report, it is apparent that human
blood was found on the clothes of the
deceased and it is also clear that rifle and
country made pistol has been used in
commission of the crime. In injury no. 1, 3
and 5 margin inverted and blackening
present shows that cartridges fired from
very short distance from the accused. These
facts also support the prosecution case.

39. The main question before us is
that whether accused Makrand Singh,
Ramjeet Singh, Ramkaptan, Rishikesh had
committed the murder of Suresh in
furtherence of common intention by
firearm.

40. PW-1 complainant (eye witness)
father of the deceased had deposed that
murder of my son Suresh Singh took place
prior one year and 20 days from today.
Deceased Suresh Singh, I, Satyendra Singh,
Sughar Singh and Jatrem P.S.-Marka R/o
Bamraula were coming to their village at
6:00 p.m. when Suresh Singh came near
''Puliya' then Makrand Singh, Ramjeet
Singh, Ramkaptan and Rishikesh appeared
with firearm, Ramjeet had taken rifle of his
brother Ramchandra; rest accused were
armed with firearm. Seeing my son,
Ramjeet exhorted that enemy found today,
so kill him, then all the accused fired on the
body of the Suresh Singh. The incident
took place on 06.10.2003 at 6:00 p.m. My
son Suresh Singh was injured by the shot of
accused persons. He fell down and died on
the spot. Accused fled away after hitting
my son.

41. PW-4 Sughar Singh eye witness
of the incident had deposed that Suresh was
son of my brother-in-law Virendra Singh.
He went to the house of Virendera Singh
on the date of incident. Virendra Singh had
returned from ''Gaya' so I went to his
556 INDIAN LAW REPORTS ALLAHABAD SERIES
house. On 06.10.2003 about 6:00 p.m. I,
Suresh Singh, Virendra Singh, Jatrem were
coming back to Parsauli. We all three were
walking together and deceased Suresh
Singh in front of us when deceased Suresh
reached near ''Puliya' there was crop of
Jwar in the adjoining field and there was a
Babool tree on the road. Four people came
out from the bush of the Babool, namely
Makrand Singh, Ramjeet, Ramkaptan and
Rishikesh.